I've been alive
forever
And I wrote the very
first song
I put the words and
the melodies together
I am music
And I write the songs.
It’s been nearly forty years since Barry Manilow first sang those lines and reached number one on the Billboard Hot 100 chart. Manilow may
have provided us with the most popular version of “I Write the Songs”, but
despite what his dulcet tones would tell you, he neither wrote the song nor was
the first to record it. The original recorded version came from The Captain
& Tennille. David Cassidy was the first to release the song as a single,
reaching #11 on the UK Singles Chart in August 1975 – five months before
Manilow hit #1 on Billboard. Bruce Johnston, a former Beach Boy, wrote the song
itself. And the song has been covered numerous times by no less than Johnny
Mathis, Tom Jones, Dinah Shore, Sammy Davis Jr., and Frank Sinatra, among
others. So who owns the copyright to the music?
The initial copyright in a piece of music, as in any other
copyrightable expression, vests in the author or authors of the work. At first
look, copyright ownership should be easy to determine – simply find out who the
author is. Authorship, however, is not so strait forward. And recorded music
only adds to the complexity of the issue – in music, separate copyrights exist
in each of four distinct categories:
1.
the musical composition,
2.
the lyrics,
3.
the performance session where the song is
recorded, and
4.
the production or engineering of the sound
recording.
Each aspect of the song may have a different “author” for
purposes of copyright.
Authorship in music still causes headache for artists, even
today. For example, news broke last week that Chauncey Mahan, a sound engineer,is suing Jay Z for joint authorship in some of the artist’s biggest hits.
So, how does one determine authorship in music? You wrote
the music and lyrics. But what if you hire someone else to sing for the
recording? What if you had help, as in the case of Jay Z and Chauncey Mayhan,
with the production and engineering of the actual recording in the studio? Authorship,
for copyright purposes, falls into three categories: Sole authorship, joint
authorship, and works made for hire.
Sole Authorship
The U.S. Copyright Act does not define the term “author.” As
a result, we have to piece together a working definition from a number of
federal court opinions discussing the matter. The Supreme Court states that
“[a]s a general rule, the author is the party who actually creates the work,
that is, the person who translates an idea into a fixed, tangible expression
entitled to copyright protection.” However, as the Court suggests, this is only
a general rule. When Stephen King sat
down with a word processor and started typing out his newest best seller,
certainly he was the party who actually created the resulting text. But what if
he dictated it to an assistant? Spoken words are not fixed in any tangible
medium, and it would be the assistant, not Stephen King, that actually affixed
the words into a tangible medium. The Copyright Act does anticipate this problem and states that a work may be fixed
“by or under the authority of the author.” This allows Stephen King to retain
authorship status even if he dictated the words of a new story.
The dictation scenario involves only a mechanical
transcription of words. The assistant does not act with any artistic discretion
or choice. He or she merely types the words as spoken. Consider another
scenario. Two screenwriters sit down together to write the script for an
independent film. Neither one acts merely as a scribe. Instead, they bounce
ideas off each other, each writes a section of the screenplay, they edit each
other’s work, and so on. There is no mechanical transcription here. This
introduces the possibility of joint authorship.
Joint Authorship
Authors of a copyrightable work should be allowed to consult
with others and adopt useful suggestions into their work. Stephen King’s Carrie
would likely be an entirely different book if he hadn’t talked with his wife
about the common struggles of a teenaged girl. Yet, Stephen King is the sole
author of the book. Creative collaboration makes a work better. So when is this
collaboration sufficient to become joint authorship? In practical terms, joint
authorship is a matter of the degree of contribution. When courts are asked to
decide joint authorship they avoid conclusion that sound like “he did a lot of
work so let’s say he’s an author.” Instead they try and articulate rules that
they and future courts follow. These rules vary from court to court, but most
follow something like this:
1.
Each author must have an independent, creative
(copyrightable) contribution. Remember, the dictation assistant is contributing
to the work, but not in an independent and creative way.
2.
The authors must share the intent to be
considered co-authors of the work. This one is tricky, and not always used by
the courts. It’s always a good idea to have an agreement in writing clearly
stating whether the collaboration is that of co-authors or not. The working
relationship might imply such an agreement, but don’t hold all your eggs in
that basket.
3.
Each author can and does exercise some degree of
artistic control over the final version of the work. This is often the most
important factor. If you have no say over what is included in the final work,
then you likely are not a co-author.
These are not all the factors, but the most common relied on
by the courts.
Work Made for Hire
There is one final category of authorship – the work made
for hire. The Copyright Act provides two sets of circumstances in which a work
is made for hire:
1.
works prepared by an employee within the scope
of his or her employment, and
2.
a specifically commissioned work used as a
contribution to a collective work where the parties explicitly agree in writing
that it is a work made for hire.
The law is clear in this respect, if you don’t have a
written agreement stating your work is one made for hire then you must be an
employee working within the scope of your employment. Otherwise, it is not a
work made for hire. The key questions then are (1) what is an employee; and (2)
what is within the scope of employment?
There are a number of ways to determine who is an employee.
Easiest to determine are those formal, salaried employees that receive a W-2
(not a 1099) at the end of each tax year. But not every employee works on those
terms. Other factors include whether someone else retains the right to control
the product, or to control how, when, and where the employee works. The
duration of the relationship between parties, the right to assign additional
products to the hired party, method of payment, and tax treatment may all be
considered when determining whether the worker is an employee or an independent
contractor.
If you are an employee, the next question is whether the
work was created within the scope of employment. Again, there are a number of
factors that might make the difference. First, is the work of the type for
which the employee is hired to perform. A Disney animator is hired to draw. A
computer programmer is hired to write code. A studio musician is hired to play
on a track. Drawing, writing code, and playing music are the types of work
these people are hired to perform. But that doesn’t mean that every sketch
belongs to Disney or that improvising in a jam session creates more
copyrightable music for the recording artist. The work must also have occurred
substantially within the authorized time and space limits of the job. The work
must also have been done with the purpose to serve the employers interests, if
only in part. If the Disney artist is sketching at the office during work
hours, and he wants the sketches to be incorporated into the next Disney
project he is working on, then the sketch is within the scope of his employment
for Disney. If, on the other hand, he sketches at home with the idea of
creating a comic book, or wants to start up the next rival animation studio,
then the work falls outside the scope of his employment.
It will be interesting to see whether Chauncey Mayhan can
succeed on his claim of co-authorship. To do so, he’ll have to prove that he
contributed an independently copyrightable portion to the Jay Z recordings (as
a sound engineer he could have no claim of authorship for the musical composition,
the lyrics, or Jay Z’s actual performance in the recording studio). If he has
no written contract with Jay Z, or the other producers on any of the recording,
then he has a tough hill to climb. Then again, even if his contributions were
very creative, and he held some amount of artistic control over the final
product, was he an employee acting within the scope of his employment? Mayhan
will have the burden of proving co-authorship, and it’s a tough claim to make.
If you collaborate with others on a copyrightable project,
and want authorship credit, make sure you have written documentation. Without
it, you may lose out.
